WOOLWORTHS LTD v ALLEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MCHUGH JJA 25 May 1988 [1988] NSWCA 180 WORKERS' COMPENSATION — "results from injury" — causation — two injuries — change in insurance of employer — whether incapacity results from one or both injuries — worker entitled to benefits of notional total incapacity — by whom compensation payable — trial judge (Manser J) holds incapacity "results from" second injury — whether erred in applying Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117 — whether evidence to support award — held: (1) Evidence to support judge's conclusion and so decision immune from disturbance by Court of Appeal. Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 applied. (2) (per Kirby P and Samuels JA) No error shown in consideration of whether incapacity resulted from relevant injury; (per McHugh JA) if by applying a test of "proximate cause" the trial judge erred, the error was to apply a too stringent test than that required by the statutory test "results from". Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 and National & General Insurance Co Ltd v South British Insurance Co Ltd & Ors (1982) 149 CLR 327 considered. LAW REFORM — workers' compensation — apportionment of liability — successive injuries to worker — suggestion by Kirby P that s7A Workers' Compensation Act be amended to permit apportionment between different insurers as well as employers. Workers' Compensation Act 1926, s7a, s9, s11(2), s37(4). Compensation Court Act 1984, s32. ORDER Appeal dismissed with costs. Kirby P This appeal illustrates once again the limits which apply to appeals on questions of law from the Compensation Court to this Court. It does so in the context of successive injuries which raise a question for determination concerning the attributability of the continuing incapacity of the worker, as found, to the respective injuries and his entitlement to compensation in the circumstances of a change in his employer's insurance between the injuries. Successive injuries to a worker Manser J, before whom the proceedings came in the Compensation Court, found that Mr Robert Allen, the respondent worker, was first injured on 31 March 1983. At that time his employer (Woolworths Ltd trading as Flemings Fabulous Food Stores) (the appellant) was insured for workers' compensation purposes by Manufacturers Mutual Insurance Limited, the second respondent. After 1 April 1983 the employer was self insured. The first injury occurred at the appellant's premises at Mascot when the worker attempted to move a large box of tinned marmalade. He struck his left wrist and lower arm. Manser J found that the injury was probably a tear of the inferior radioulnar meniscus associated with subluxation of the joint. After a short period of total incapacity the worker resumed work with the appellant, doing his normal duties. The second respondent insurer paid compensation during this period of total incapacity. The worker gave evidence that on resuming work he continued to experience trouble with his left wrist. He applied ice to it at night. On 8 June 1983, the appellant by this time being self-insured, the worker suffered a second injury. 2 UNREPORTED JUDGMENTS Manser J described it as an "incident". However, it is inherent in his findings that he concluded that the worker had suffered another "injury" for the purposes of the Workers' Compensation Act (the Act). The second injury occurred when the worker, in the course of his employment, reached forward with his left hand to grasp a large carton of Glad Bags, a popular variety of plastic bags. The worker described the event in evidence thus:- Q. When you went back to work, did you go back to normal duties? A. Yes. Q. How did you find the work affected your wrist? A. I worked back one night, and I went for a big carton of Glad Bags, and I stretched out to pull forward, and a sharp pain went up my arm. Q. Was that the same pain you had felt at the time of your accident? A. Yes. Q. Before that night, how did it feel as you worked? A. I had been aching all day. Q. It had been aching each day since your resumption? A. Yes. Q. Your last day of work was 8 June 1983? A. Yes. Q. And you were paid compensation until 15 May 1985? A. Yes. The worker claimed and was paid compensation by the appellant. In 1984 the worker moved from Sydney to Port Macquarie. He did so, as found by Manser J, for personal and family reasons having nothing to do with his incapacity. His compensation payments were terminated by the appellant on 15 May 1985. After that date he continued to suffer physical disabilities of which he complained. Manser J found that for ordinary day to day activities the worker was not greatly disabled by his physical condition. However, his Honour concluded that he was disabled for work involving any "strenuous activity". The incapacity of the worker This disability was a real one for the worker because of the employment market in which he might reasonably be expected to be employed. Until his injuries this had been that of a storeman engaged in heaving lifting and stretching of his upper limbs. His work in the general labour market was likely to be of that kind. Manser J found that the worker was incapacitated for work from the date of the cessation of compensation payments and continuing. However, he found that he was not totally incapacitated. On the medical evidence adduced in the Compensation Court this finding was unassailable. Indeed, it was not challenged on the appeal. The issue before us has been substantially the attribution of liability for the worker's incapacity and whether his Honour approached that question as the Act requires. In his judgment Manser J turned his attention to a claim by the worker for compensation benefits on the basis of notional total incapacity in accordance with s11(2) of the Act. The appellant had a store in Port Macquarie. At that store the worker made an application for work suitable to his disabilities. Manser J found that the worker would have done such work if it had been offered. However, suitable work was not offered. His Honour held that s11(2) of the Act, therefore applied. He awarded the worker full compensation on the basis of that subsection. This finding was challenged in the notice of appeal originally filed by the appellant. However, that ground of appeal was withdrawn at the hearing. It is not necessary for the Court to consider the question further. But I would wish to reserve the correctness of his Honour's conclusion in the circumstances proved in this case. URJ WOOLWORTHS LTD v ALLEN (Kirby P) 3 The appellant's first ground of appeal in the original notice of appeal contended that Manser J had erred in finding that the worker was ready and willing to perform suitable work for the appellant. This ground was also abandoned, probably because it was considered that no question of law was raised. It is necessary to restate that appeals lie to this Court from the Compensation Court relevantly only on a point of law (see Compensation Court Act 1984, s32). The conduct of the appeal, as I have described it, therefore narrowed the issue for our consideration to one only. As stated in the amended notice of appeal this was whether there was evidence that the incident of 8 June 1983 described in the evidence was the "proximate cause', as his Honour described it, of the worker's incapacity, and whether, in so approaching the case, Judge Manser had erred. The appellant contested his Honour's findings. It sought to blame the earlier injury on 31 March 1983 when the second respondent and not the respondent itself, was at risk as insurer. A persistent error in appeals from the compensation Court I digress to say that in the original notice of appeal there was the familiar reappearance of a formulation of a ground of appeal which should be eradicated from appeals of this kind. Originally, the appellant sought relief on the ground that the finding of his Honour that the "proximate cause" of incapacity was the incident of 8 June 1983 was "against the evidence and the weight of the evidence". This inappropriate formulation, so hard to extirpate from the Bar's collective mythology and thus from notices of appeal to this Court from the compensation Court, perpetuates a fundamental mistake about the role of this Court in compensation appeals. It does so despite decades of calumny from this Court and reminders of the plain terms of the Act, and of the equivalent provision in its predecessor. It is arguable that there should be appeals on questions of fact in at least some appeals from the Compensation Court and from other subordinate tribunals. Mahoney JA has recently pointed out that review of decisions of fact would sometimes be suitable upon an "appropriate structuring of the justice system". Decisions of fact may sometimes disguise important considerations, eg considerations of policy. This was pointed out by his Honour in Australian Iron & Steel Pty Limited v Najdovska & Ors (unreported, CA, 18 May 1988). I earlier said something similar in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151. However, the rigorous standard to be applied to appeals to this Court from the Compensation Court is as was stated by Glass JA in Azzopardi at 156. Even a conviction by this Court that a decision on the facts is perverse or illogical may not be disturbed in this Court if there was evidence upon which the judge, applying the statutory formula, could have come to the conclusion which was reached. Facts are the exclusive province of that judge. Their meaning and evaluation is reserved by Parliament to that judge. We may not disturb such findings unless, relevantly, they display an error of law. Where is the alleged error in law here? Attributability of liability at the trial The resolution of Manser J of the controversy concerning the attributability of, and the responsibility for, the continuing incapacity of the worker appears in a very brief passage at the end of his Honour's judgment. He says:- 4 UNREPORTED JUDGMENTS "The fact of injury to the worker is not seriously contested in these proceedings but there is the complication that between March and June of 1983 the respondent ceased to be insured and became a self-insurer. Indeed, that situation applied from 1 April 1983. Although it might be true that the particular injury suffered by the worker was potentially incapacitating on a continuous basis from the date it originally occurred, it remains true that the incapacity which the worker has suffered from to the present time commenced from 8 June 1983. Applying the principle laid down in Pickersgill's case, it seems to me that the proximate cause of the worker's incapacity is the incident which occurred on 8 June 1983." Pickersgill's case, to which his Honour refers, is Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117. The appellant formally contended that the case had been wrongly decided. This submission had been made in Pirelli Ericsson Cables Ltd v Spadina & Anor, unreported, CA, 24 April 1986; (1986) NSWJB 92 and had been rejected in that case. The submission was not argued. Whilst noting the submission, it may be safely ignored in the manner in which it was raised. The Court in Pickersgill (comprising Moffitt P, Samuels JA and Priestley JA) examined the approach to be taken in the evidence of that case in circumstances of successive injuries to a worker. The answer to the attributability of liability, it was pointed out, requires regard to be had in every case to the statutory formula "results from" in s9 of the Workers' Compensation Act. By that provision the question is posed whether the incapacity for work "results from the injury". These words of connection have a long history in workers' compensation legislation, as was pointed out in the discussion of the phrase by Windeyer J in The Commonwealth v Butler (1958) 102 CLR 465 at 479. In Pickersgill it was suggested that they were not equivalent to "is caused by" or "is causally connected with" but connoted a relationship of causation between injury and incapacity which was more proximate. According to Moffitt P in Pickersgill they implied "some element of precipitation". See also Taylor J in The Commonwealth v Butler at p 76 cited by Priestley JA in Pickersgill at p 123. In Spadina I pointed to some of the difficulties which this view produced and reserved the correctness of Pickersgill insofar as it states a general principle. Problems for the Compensation Court are created when successive injuries involve different insurers or insurers and an uninsured employer. Such problems also arise where one employer changes insurers; where it allows its insurance to lapse; or where, as here, the employer becomes self-insured between a series of relevant injuries. Problems can also arise where injuries occur with successive employers which have different insurers. Originally, the Act provided no means of apportioning liability as between employers and insurers in such cases. This was a matter commented upon in early cases of this kind. However, in 1980, s7A of the Act was inserted to permit the Commission, and now the Court, to apportion liability to pay compensation as it arises between separately liable employers. In National Employers' Mutual General Insurance Association Ltd v Calver & Ors [1983] 3 NSWLR 107, this Court pointed out that s7A deals only with the apportionment of separately liable employers. It does not deal with the liability of insurers of the same employer nor by parity of reasoning, does it deal with the present case where the contest is between a self-insured employer and an earlier relevant workers' compensation insurer. Therefore, the facility of s7A was not available to Manser J even if he had wished to use it in this case to apportion the liability found between the appellant and the second respondent. URJ WOOLWORTHS LTD v ALLEN (Kirby P) 5 It is a misfortune that, when s7A was inserted in the Act, it was not so worded as to apply to situations such as the present where successive insurers and not successive employers are involved. The lacuna should once again be called to the notice of Parliament. On the evidence of the worker and the medical evidence called in the Compensation Court it would have been open to Manser J to find that the injury on 8 June 1983 was simply a further manifestation of the original injury suffered on 31 March 1983. Alternatively, his Honour could have found that it was a purely passing phenomenon and that, at least by 15 May 1985 when compensation payment ceased, it had no causal significance in the worker's continuing incapacity. His Honour plainly could have concluded that the continuing incapacity resulted from the initial injury on 31 March 1983. However, his Honour did not form that view of the facts. He determined that the incapacity resulted from the second injury. That is made clear both by his award and by his reasons for judgment. Mistaking the principle in Pickersgill's case Is this conclusion immune from our review? Two questions only have caused me to pause in this appeal. The first is whether, in the short exposition by his Honour of his reasons for attributing the cause of continuing incapacity to the second incident, he indicated an error of a too-simplistic application of the decision of this Court in Pickersgill. It would be to misunderstand that decision, and the requirements of the phrase "results from" in 5 9 of the Workers' Compensation Act, to assume that in every case of a claim such as this under s11(2) an incident later in point of time is necessarily the relevant "cause" of the continuing incapacity, however long it may last. It would be an error to conclude that Pickersgill requires that incapacity must always be held to "result from" the later incident. It would be a mistake of law to forfeit the duty which arises for the judge in each case to consider the facts as found, including any medical evidence, against the criterion of the Act. However convenient it might be to adopt such a simple rule of thumb, it is not warranted either by what this Court said in Pickersgill or by the terms of the Act. Cf Conkey & Sons Ltd v Miller (1977) 51 ALJR 583, 585. However, I do not think that Manser J made such an error. The Court has recently pointed to the limits on the extent of the duty of a Judge in the Compensation Court to give detailed reasons for his decisions on the facts, although he or she must expose the critical steps in reasoning. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 266 and 281. I approach Manser J's brief reasons for judgment with this authority in mind. Manser J points out that the incapacity suffered commenced from 8 June 1983. This indicates sufficiently that his Honour was directing his attention to what it was that the incapacity resulted from. He found that it resulted from the second incident. He was dealing, as he states it, with the incapacity suffered "to the present time", that is to say to the date of award on 10 November 1986. In the circumstances of this case therefore his finding is immune from our review provided there is evidence to sustain it. Evidence to sustain the trial judge's conclusion That takes me to the second question which is more troubling. It is whether there was evidence of continuing incapacity attributable to the second incident to sustain his Honour's conclusion. The worker gave the following relevant evidence on that question:- 6 UNREPORTED JUDGMENTS Q. When you went back you went back with a strap or brace on your wrist, correct? A. No. No. Q. In fact, were you not fitted with a bandage before going back. A. No. Q. You went back and you noticed pain in your wrist? A. Yes. Q. And I think you also had aching in your wrist? A. Yes. Q. And I think it was not until June when you went to reach out for the carton of Glad Bags, it was then that you noticed pain extending up to your elbow. Is that right? A. Yes. Q. But I think you described that as pain you had felt earlier? A. Yes. Q. You then went back off work, on to a treatment with a doctor at the South Sydney Hospital? A. Yes. Q. What was that treatment? A. Physio. Q. And I think the position was that following that the pains and aches that you noticed in your wrist were back to what they were when you first injured your wrist? A. Yes. Q. And today it is that pain and aching which you originally felt after that incident in March that is the reason that you are unable to do your old job? A. Yes. No oral medical evidence was called to dissect the attributability of the continuing incapacity. The written medical evidence addressed to this question is imprecise. However, there were, in addition to the oral evidence of the worker which I have quoted, factual circumstances on which it would have been open to his Honour, although he does not specifically refer to it, to come to the view which he did. These include the fact that after three and a half weeks following the first injury the worker said that he felt able to return to his normal work; the fact that he returned to full normal duties; the fact that he proceeded to work overtime during this interval; the fact that the pain which he described on the second injury, and as recorded by Dr Millions, was a "sharp" pain, "worse than before"; the fact the pain then, apparently for the first time, went up his left wrist to his elbow; and the fact that he was continuously incapacitated from the date of the second injury and thereafter to the date of the hearing. His Honour held that he was incapacitated from the happening of the second injury and continuing. It is not to the point that on the facts described I would have reached a different conclusion to that reached by Manser J. Nor is it to the point to suggest that on those facts a just conclusion might have been an apportionment between the appellant and the second respondent, had only such a facility been available under the Workers' Compensation Act or otherwise. These are matters which are not before this Court on the present appeal. The award made by Manser J does not operate forever. The appellant can seek a review of it, according to law, in the Compensation Court, either by seeking to terminate it or by seeking to prove that any continuing incapacity is no longer attributable to the injury for which it is liable. But, on the facts described, the award which Manser J entered was open to him on the evidence. It is therefore not susceptible to disturbance by this Court. Orders No error of law being shown on the part of Manser J the order which I would propose is that the appeal be dismissed with costs. Samuels JA I agree. S37(4) of the Workers' Compensation Act 1926 restricted appeals to the Court of Appeal to appeals in point of law. As the President pointed out s32(1) of the Compensation Court Act 1984 has repeated this limitation. Hence the legislature in this State has made it plain that it proposes to continue to exclude questions of fact from the jurisdiction of this Court in the review of decisions of the Compensation Court. URJ WOOLWORTHS LTD v ALLEN (McHugh JA) 7 Of course, whether there is any evidence capable of establishing an issue of fact raises a question of law but the choice of two available constructions of evidence raises only a question of fact. If, upon examining the record, this Court concludes that there was no evidence in support of an issue, it must of course say so. On the other hand it should not, in my opinion, be unduly astute to uncover some evidentiary deficit. In the present case it seems clear that the worker's incapacity after the second incident was worse than it was after the first. After the first he could return to work; after the second he could not. From that I would conclude that the second incident was of more potent effect than the first and amounted to more than a mere aggravation which, in turn, settled back to an original level. In the passage to which the President has referred at p 21 there is material which is capable of implying that after the second incident the worker's incapacity reached a level and remained at a level of incapacity somewhat higher than the consequences of the first incident represented. That being the case it seems to me that it was open to the learned Judge to arrive at the conclusion he did. Given that view of the facts I think that he correctly applied the decision in Pickersgill so there is no point of law to be got out of any misapprehension of that case. I therefore agree that the appeal should be dismissed with costs. McHugh JA I agree, for the reasons given by the President and by Samuels JA, that there was evidence upon which the learned Judge could make the award which he did. But I would like to make some comments about the question of causation under the Workers Compensation Act. The learned Judge said that, applying "the principle laid down in Pickersgill's case, it seems to me that the proximate cause of the worker's incapacity is the incident which occurred on 8 June 1983". With great respect to his Honour I do not think that Pickersgill's case lays down any principle of proximate cause. It is true that in that case which is reported in (1983) 3 NSWLR 117 Moffitt P said (at 118) that the phrase "results from" imports "some element of proximity in the causative links between injury and incapacity". It may be that the judgment of Priestley JA in that case by citing (at 123) a passage from the judgment of Taylor J in The Commonwealth v Butler (1958) 102 CLR 465 at 476 also lends support to the view that proximate cause is a test of the expression of "results from". However, the decision in Pickersgill v Freightbases Pty Ltd holds only that the expression "results from" in the Workers' Compensation Act does not cover a condition which merely predisposes the worker or makes him more vulnerable to later injury. That is its ratio decidendi. In my view it should not be taken as deciding anything more. Leave to challenge the correctness of the decision was not sought. It is unfortunate that in Pickersgill's case this Court was not referred to the decision of the High Court in Conkey & Sons Limited v Miller (1977) 51 ALJR 583 where the court commented on The Commonwealth v Butler 102 CLR 465. Barwick CJ, giving the judgment of the court, said at p 585:- "The case (ie Butler's case) does not decide any principle of law. The Statute requires the death to result from work-caused injury. Whether it does or does not is a matter of fact. Doubtless in applying the concepts of causation, a statement by an eminent judge such as I have quoted, is entitled to respect by those who have themselves to decide a question of fact upon the evidence of a case before them. But its persuasion rises no higher and certainly does not bind any point of precedent." 8 UNREPORTED JUDGMENTS Perhaps the members of this Court in Pickersgill v Freightbases Pty Ltd did read The Commonwealth v Butler as laying down a principle of law. If they did, the subsequent comments by the High Court in conkey & Sons v Miller show that conclusion was erroneous. Moreover, what was said, particularly by Moffitt P in Pickersgill is hardly consistent with what the Privy Council said about the concept of causation in Workers' compensation legislation in Bushby v Morris [1980] 1 NSWLR 81 at 87. Lord Keith of Kinkel, in giving the judgment said:- It is well established in common law context that an injury or incapacity may be attributable to more than one cause, in the legal sense, operating concurrently. If any authority be required for that proposition, it is sufficient to refer to Baker v willoughby, particularly the speech of Lord Reid, where it is to be observed also that he equiparated the legal view of causation in tort to that in the field of workman's compensation. Their Lordships are of the clear opinion that there is indeed no difference between the two subject to the qualification that in a claim for workers compensation it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. The question of foreseeability does not arise. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by novus actus interveniens." The passage which I have referred in the Advice of the Privy Council in Morris v Bushby is altogether inconsistent with what Moffitt P said (at p 118) in Pickersgill v Freightbases Pty Ltd and does not sit easily with the statements of Taylor J in Commonwealth v Butler. In Pickersgill Priestley JA thought that their Lordships, in Bushby v Morris, in saying that they saw no reason to doubt the correctness of the decision in The Commonwealth v Butler, must have approved the passage in Taylor J's judgment which they had earlier quoted. However, what their Lordships said about Butler's case and Conkey's case was simply:- "Their Lordships see no reason to doubt the correctness of either of these decisions but they stress that each of them turned upon an analysis of the medical evidence. No support for the present appellant's contention is afforded by these decisions and they may be reasonably regarded as incompatible with it." I think it is clear from that passage that, although their Lordships approved the actual decisions in both Conkey & Sons Limited v Miller and The Commonwealth v Butler, they cannot be taken to have approved the reasoning in either case. To complicate the matter further Deane J, giving the judgment of the High Court in National & General Insurance Co Ltd v South British Insurance Co Ltd (1982) 149 CLR 327 at 336, said:- "... the reference to Bushby v Morris should not be seen as indicating necessary agreement with the view apparently accepted by the Privy Council in that case, that common law principles of causation are applicable to determine whether it can properly be said for the purposes of the Act that a partial incapacity results from a specified injury. In particular it has not been necessary in the present case to consider whether, contrary to what was said by Taylor J in The Commonwealth v Butler, the fact that an injury is a causa sine qua non of incapacity itself suffices to found a conclusion that, for the purposes of the Act, the incapacity results from that injury." Until either the High Court or this Court deals with the matter of causation in the Workers' Compensation Act authoritatively, it is my view that Judges in the Compensation Court would be well advised to simply apply the words of the Act, without any of the glosses or explanations which can be found in cases such as Butler, Pickersgill and Bushby v Morris. URJ WOOLWORTHS LTD v ALLEN (McHugh JA) 9 In applying the principle of proximate cause, Manser J applied too restrictive a test. However, since his Honour held that the evidence satisfied that test, it follows that the evidence satisfied the more liberal test predicated by the words "results from". 5 [agree with the orders proposed by the learned President. KIRBY P: The order of the Court is appeal dismissed with costs.